—Zoran Oklopcic, Department of Law and Legal Studies, Carleton University, Ottawa. Author of Beyond the People: Social Imaginary and Constituent Imagination (Oxford University Press, forthcoming February 2018).

[Editor’s Note: This is the fifth entry in our symposium on Sunday’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. The introduction to our symposium is available here.]

As Barcelona slowly inches towards Belfast, one might wonder what was it exactly that made the events on October 1 so disturbing? Was it only the use of force by the Spanish police? Or was it also the context—the denial of the democratic aspirations of Spain’s Catalan citizens—which made those scenes particularly egregious? Though this question is rhetorical, it’s worth putting on the record. It is illustrative of an interesting choice of words used to describe the events on October 1 by the international media. Instead of describing the day as the (obstructed) manifestation of the will of the sovereign ‘Catalan people’ and its ‘inalienable’ right to self-determination—which is what had occurred, juridically, following the terminology used in the Catalan Law on Self-Determination Referendum—many news outlets referred to it more loosely: as the suppression of the ‘Catalans’ intent on democratically expressing their desire to form an independent state. This slight discursive discrepancy—this shift from ‘wills’ and ‘rights’ of unified corporate bodies towards desires and aspirations of plural individuals—is largely ignored by constitutional scholars and general audience alike. Once lingered upon, this attention to discursive detail seems to be a rather trivial matter, caused by two opposing and un-explicated, but rather sensible answers. The first answer is that the democratic aspirations of Catalans and the will of a sovereign Catalan people are the same. In the second—which still seems to be the prevailing opinion both in the media and in the academia—they are not: the Catalans are not a sovereign people that could, juridically speaking, be capable of exercising ultimate authority over the territorial, personal, and temporal jurisdiction of the Spanish constitutional order.

Though the terminological discrepancy between the ‘Catalan people’ and ‘Catalans’ deserves another look, this second answer gives rise to a rudimentary question that needs to be confronted: Shouldn’t constitutions be enforced by those authorized to enforce it? If Catalans are not a sovereign people, and if their referendum has been declared unconstitutional by the highest constitutional forum of an otherwise liberal and democratic state, why is an attempt to prevent such referendum from happening necessarily illegitimate? However this Spanish crisis plays out, the Catalan sovereigntist movement has in that regard already accomplished one major victory: it has successfully link the issue of the referendum with that of the freedom of expression and association, thereby making the dura-lex-sed-lex attitudes of anti-secessionists appear not only insensitive, petty, and inhumane, but also unreasonable and unethical. Irrespective of the formal unconstitutionality of the act of the referendum—as well as the unilateral secession of Catalonia itself, as one of the referendum’s possible outcomes—violence is no way to respond to democratic aspirations, they would say.

But if violence and police repression is not the way to respond to democratic aspirations, what is? That is a much thornier question, to which the ideals of popular sovereignty, national self-determination, and democratic self-government have no good answer. While the advent of the ideal of popular sovereignty in the second half of the XVIIIth century increased presumptive moral dignity of aspirants in the eyes of spectators, most such struggles—at the very least until the second half of the XXth century—were waged against colonial empires, not democratic republics. Is Spain an empire? Though many Catalans would wish to make others believe differently, the answer is no. Irrespective of the gruesome acts of the Spanish police on October 1, the citizens of Catalonia, together with the rest of Spanish citizens, have equal right to exercise their democratic freedoms at all levels of government, from municipal to regional and central. The fact that Spain remains unresponsive to the demands for national self-determination in the form of an independent state doesn’t turn Spain into a colonial master and Catalonia into an overseas dependency, nor turn those who fight for its independence into the members of a national liberation movement (not to mention the fact that Catalan claims are never explicitly justified in terms of national self-determination).

Spain, Canada, Britain: Farewell three ‘comparativist’ amigos?

So is it legitimate—because it is certainly constitutional—for Spain to simply ignore the manifestation of the democratic aspirations of the Catalans? Though our intuitions may rebel against it, it is not clear why this is not the case. The reason why constitutional scholars ignored this troubling question is, again rather straightforward, in the contexts where most constitutional scholars would be able to recognize it as important. For the most of the 1990s, 2000s and even 2010s, Spain was presumed to be part of a respectable club, which together with its other two members might on this occasion be termed the three amigos of comparative constitutional law: Spain, Canada and Britain—three liberal-democratic multinational states taken as the exemplars of the exemplary and innovative ways in which to respond constitutionally to the challenges of minority nationalism.

The clash of similarly single-minded and categorically irreconcilable constitutional visions that led to the events of October 1 was, of course, duly noted earlier elsewhere. On those occasions, however, it was never taken to be a problem for the way in which theorists and comparative lawyers approach the ideals of popular sovereignty, political legitimacy and liberal-democratic constitutionalism. Since there are no ethnographic accounts of the disciplines that focus on those ideals intently, scholars are, inevitably, confined to speculation in trying to answer why. Here is such an attempt. Three mutually reinforcing dichotomies, which most constitutional scholars—often based in the territories of the three amigos, or in their wider juridical, political and geopolitical vicinity—seem to have taken granted, have prevented a reckoning with the question as to whether Spain can ignore the aspirations of the Catalans. These dichotomies are:

between an inclusive, self-restrained and other-regarding sub-state (and/or national) demos—and a resentful, exclusivist, and single-minded ethnos;

between a pragmatic and accommodating liberal multinational democracy in the West—and a rigid and nationalistic post-communist or otherwise ‘backsliding’ democracy in the East;

between secession as a ‘remedy’ for the long-lasting and grave oppression of minority nations, inflicted by the latter—and territorial integrity as the legitimate entitlement of the former.

Is the erosion of these three dichotomies really that significant? True, one could argue, October 1 was a small hiccup, where part of the West (or the North) looked for a moment like a place somewhere in the East (or the South), but this has nothing to do with the conversations among constitutional scholars who try to make sense of these events theoretically and conceptually. There is no reason for them not to go on as usual: a foundational constitutionalist defending the arguments of the Spanish government; constitutional or radical pluralist defending (or at least showing sympathy) the sovereignty of the Catalan people; and so on. From each of these scholars, the question above easily elicits the same answer: That is not our job. Whether we are constitutional theorists, comparative constitutional lawyers, or doctrinal jurists, it is not our task to worry how our arguments sound to those on the ground. Though this matter can easily be settled by invoking some ideal of academic freedom, or the value of an unrestrained pursuit of intellectual curiosity, it remains exposed to another more insistent question: Who is anticipated as a meaningfully receptive audience on behalf of those who treat those ideals as the objects of scholarly inquiry, if not those who invoke the name of a sovereign people on the ground? The judges on the bench of ECJ or the Supreme Court of Canada? Peers? Graduate students? And again—why? While disappointing and disorienting—and until yesterday almost unimaginable—the scenes from the streets of Barcelona don’t make the confrontation with these questions any less uncomfortable. They do, hopefully, reveal the questions as sensible in a scholarly way, and perhaps even pressing, professionally and politically.

In this short post, I cannot elaborate on this claim much further. What is possible, however, is to quickly outline five assumptions—which, when not completely invisible, remain ‘unmentionable’ by those who detect them—and which allow for the business of conversations among constitutional scholars to go on as usual. Though rudimentary and highly speculative, a quick glance at the assumptions below reveals their Janus-faced character: blind spots from the perspective of theoretical conversations; take-it-or-leave-it demands from the perspective of those who’d interpret them from their position in the field of struggle. In speaking to their folk understandings of people’s ‘will’, ‘right’, ‘power’, ‘authority’, ‘self-determination’ or ‘constituent power’ theoretically or juridically, constitutional scholars ask of them to embrace at least one of the following attitudes, when they use those terms politically, practically and polemically:

to treat arbitrary facts (e.g. of foundation) as inevitable paradoxes or aporias (e.g. of constitution)—even when they work in their disfavour, and even when the behaviour that theorists anticipate as something calling for the acceptance of those facts or contradictions cannot in a given case be imputed to them;

to forget that concepts such as democracy, popular sovereignty, or constitutional authority are, on their own, scale-agnostic, but to insist they are scale-biased, and to ignore the contestable concepts, arguments, or interpretations that support them (e.g. subsidiarity, historical rights, territorial integrity, or pacted character of the foundations of multinational states);

to presume the existence of sociological facts at a certain scale (mostly national or sub-national) as decisive; or to treat as irrelevant the existence or emergence of competing sociological facts at other scales (both national and sub-national, as well as supra- and sub-sub-national);

to conform to the demands of moral symmetry in a narrower context while setting aside the asymmetry—both political and ethical—that such conformity would inadvertently create in a wider one;

to see themselves—more generally—as bound to be responsible, ‘respons-able,’ or simply more politically generous on the basis of arguments which are either: (V.1.) based on unstated assumptions, contestable factual judgments or legitimately disputable predictions; or (V.2.) simply more fitting elsewhere—i.e. in a region that a theorist really thought of when he or she crafted an argument that offers itself

Though this quick list of these demands does violence to the richness and sophistication of many theoretical arguments on the nature, function, and prescriptive content of the ideals of constitutional authority, popular sovereignty, self-determination, or democratic self-government, I do think that it is, at its base, accurate. Even if not, making the list public is still justified by the issue it raises and which otherwise wouldn’t have a chance to present itself given the way constitutional scholars approach the clash of constitutional visions such as the one in Spain—that is, not as an occasion to reflect on their own (unmet) expectations (from their theories and about the expectations of others) but as an occasion to evaluate trends, arbitrate between claims, and keep trying to answer same old questions: Who is the people? What is the meaning of the right to self-determination? At what level of government, and where, may constituent power be legitimately exercised?

Occurring in an environment where it was not supposed to occur (i.e. Western Europe) the crisis in Catalonia is a good moment to ask if the problem is not in the answers to these questions but in the questions themselves. The questions oftentimes require one of the sides of the argument to give up its original position completely, however they are responded to. In seeking to persuade by force of argument, they fail to register that, for example, the Catalan sovereigntists will hardly feel compelled to accept the ultimate authority of a collective entity which can exist only in virtue of performative contradiction. Or—since these things always cut both ways—how will the Spanish defenders of constitutional status quo see the assertions of the constituent power of the Catalan demos—which when seen from their juridical perspective, is nothing but the creature of the Spanish constitution, and when seen from their sociological perspective fragments into a confusing picture of polarized citizenry, in some cases even clustering territorially, as in Tarragona, or Val d’Aran—as anything other than infuriatingly disingenuous?

Migrating Secession Reference: Sense Beyond Sensibility

Perhaps we need not go that far. Perhaps October 1 is not an occasion for scholarly overreaction. (Many would say, in fact, that nothing is.) Perhaps the entire problem can be dealt with constructively, by finding a way to transplant successful constitutional responses to similar—but never so revealingly dramatic—crises elsewhere. The most influential one on offer—discussed by Stephen Tierney in his post yesterday—has its origins in the reasoning of the Supreme Court of Canada in its landmark 1998 decision Reference re Secession of Quebec. Already highly influential in the prelude to the independence referendums in Montenegro (2005) and Scotland (2014), the Secession Reference has also been frequently invoked by both sides in the constitutional conflict in Spain; as well as cited by the Spanish Constitutional Tribunal itself in one of its earlier decisions on the unconstitutionality of the Catalan ‘right to decide.’

How to understand the hostility of Spanish institutions towards the logic of the Secession Reference? Is their inhospitable attitude toward the migrating spirit of the Secession Reference a sign of those institutions’ fear of opening doors to another spectre: of España invertebrada—the spineless Spain, as Ortega y Gasset famously dubbed it—unable to stop fragmenting, once it has begun? Or, might this inhospitable attitude toward the spirit of open dialogue and constitutional responsiveness also be the symptom of something many comparative constitutional lawyers might find counter-intuitive: the failure of the spirit of the Secession Reference to speak to new audiences in a way that would make them take its message seriously? As comparative constitutionalists know well, the duty to negotiate secession in good faith follows from the interplay of four unwritten principles which themselves derive from Canadian constitutional history—not from a free-standing moral argument about the value democracy, federalism, popular sovereignty or the consent of the governed. Put differently, just like any other constitutional argument, the argument in the Secession Reference presupposes some combination of the assumptions (I) – (V), which can all to easily be turned upside down. Why should those whose job is to defend the integrity of the Spanish constitutional order not take advantage of that? Invited by those who’d have them be inspired by Canada and Britain, they have responded, directly or indirectly, with a more elaborate version of “That’s different!”—the most rudimentary comeback in every intense argument.

There is still a certain chance that Spain—reconciled with Catalonia as one of its parts—might return to the club of three amigos. In the meantime, those who support the solutions adopted by the remaining two members, Canada and Britain, will need to find another way to make the spirit that presided over the Secession Reference (and the Edinburgh Agreement) intelligible in the eyes of someone who has taken foundational constitutionalism and the sovereignty of a unitary people seriously. Doing so might require not only propagating the migration of constitutional ideas, but also theorizing them differently, paying attention not only to the language of paras 88 and 92 of the Secession Reference, which Stephen Tierney rightly stressed in his post, but also to the terminological slide between the third person singular in para 88, which states that “[t]e clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession,” to the third person plural in para 92, which concludes that “[t]he continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.” To the surprise of many, the Spanish government sees those wishes as having no dignity on their own—with no constitutionalist ifs and buts—and chooses, instead to focus on the mythical unity of the Spanish people and the inviolability of its territory. Those who have in the past disagreed with this conclusion have simply offered another one. Perhaps the time has come to start paying more attention to the hidden expectations, hopes, anxieties behind them all.

One Response

A truly incisive analysis of the international legal aspects of the Catalan bid for independence from Anne Peters on EJILTalk! :

“I have myself consistently defended referendums (or other mechanisms of democratic decision-making) as a procedure for territorial realignment. It is surely preferable to determine the territorial contours of a polity on the basis of the consent of the governed following public debate among all affected groups, not on the allotments made by hegemonic powers on the drawing board or in green rooms. But we must not forget that the referendum was first of all designed as a procedure to confirm, define, or reject the drawing of a boundary where the basic decision that there should or could be an international boundary was already agreed upon (such as in the case of the Scottish referendum based on an agreement between the British and the Scottish government) …

… Now can we say that once we accept a requirement of a democratic justification, this rule must extend to all types of territorial changes, especially against the background that a neat categorisation is not possible in practice? I have defended this position in the past but I am not so sure anymore. Where there is no underlying political acceptance, also among the other populations who will be directly affected by a secession (and who should therefore also have a say on the matter), e.g. the Spanish people, a territorial referendum seems more populist than democratic.”

This is just a highlight of a broader argument Peters makes in that text, but to me it raises important conceptual points which need to be if not resolved, then at least clarified if we are ever to achieve what Hilary Charlesworth called “analytical progress” in international (but also constitutional law):

1. What do we *really* mean by the consent of the governed? The same thing as political theorist who approach it in the vein of early-modern contractarian theory or something else?

2. Are we to put it bluntly, truly, sincerely agnostic about who is “directly affected by a secession” within a state whose integrity is put in question by a minoritarian demand for ‘external’ self-determination?

With respect to the first question, my sense is that by consent we actually mean something both fuzzier and more precise than the term used by early-modern and contemporary contractarians: not the act of will (however tacit) but rather the forward-looking affective attitude: allegiance, attachment, indentification with a particular territorial polity. (In fact the germs of this alternative view hide in the very etymology . of “consent”, which derives from “con-sentire”–a together-*feeling*)

With respect to the latter, my sense is that we don’t really–in our heart-of-hearts– believe that a person in Santiago de Compostela has the same stake in the political future of Catalonia as does someone from Girona, or Sitges in Catalonia.What follows from this is conceptually, theoretically and juridically is perhaps the topic for some other debate.

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